Citation Nr: 0621641
Decision Date: 07/21/06 Archive Date: 08/02/06
DOCKET NO. 03-32 692 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for a left shoulder
disability.
REPRESENTATION
Appellant represented by: Kentucky Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
R. Kessel, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1971 to
July 1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky. In September 2005, the Board, among
other things, remanded the veteran's left shoulder service
connection claim to the RO for additional development. The
case has been returned to the Board for appellate review.
FINDING OF FACT
The veteran does not have a left shoulder disability that is
attributable to his active military service.
CONCLUSION OF LAW
The veteran does not have a left shoulder disability that is
the result of disease or injury incurred in or aggravated
during active military service. 38 U.S.C.A. §§ 1110, 1112,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159,
3.303, 3.304, 3.307, 3.309 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
The Board notes the enactment of the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2005). To
implement the provisions of the law, VA promulgated
regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2005). The VCAA and its implementing regulations
include, upon the submission of a substantially complete
application for benefits, an enhanced duty on the part of VA
to notify a claimant of the information and evidence needed
to substantiate a claim, as well as the duty to notify the
claimant of what evidence will be obtained by whom.
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)
(2005). In addition, they define the obligation of VA with
respect to its duty to assist a claimant in obtaining
evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (2005).
The Board finds that all notification and development action
needed to render a decision as to the claim on appeal has
been accomplished. Through November 2002, March 2003, and
October 2005 notice letters, as well as a statement of the
case (SOC) in October 2003, and supplemental SOCs in November
2004 and January 2006, the RO notified the veteran and his
representative of the legal criteria governing his claim, the
evidence that had been considered in connection with his
claim, and the bases for the denial of his claim. After
each, they were afforded the opportunity to respond. Hence,
the Board finds that the veteran has received notice of the
information and evidence needed to substantiate his claim,
and has been afforded ample opportunity to submit such
information and evidence.
The Board also finds that the November 2002, March 2003, and
October 2005 notice letters satisfy the statutory and
regulatory requirement that VA notify a claimant which
evidence, if any, will be obtained by the claimant and which
evidence, if any, will be retrieved by VA. See Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties
imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In
those letters, the RO notified the veteran that VA was
required to make reasonable efforts to obtain medical
records, employment records, or records from other Federal
agencies. The RO also requested that the veteran identify
any medical providers from whom he wanted the RO to obtain
and consider evidence. Additionally, the notice letters
requested the veteran to submit medical evidence, opinions,
statements, and treatment records regarding his disability.
In the October 2005 notice letter, the RO told the veteran to
send in any evidence in his possession that pertained to his
claim. Consequently, the Board finds that the veteran has
been put on notice to submit any pertinent evidence that he
may possess.
Although the complete notice required by the VCAA was not
provided until after the RO adjudicated the veteran's claim,
"the appellant [was] provided the content-complying notice
to which he [was] entitled." Pelegrini v. Principi, 18 Vet.
App. 112, 122 (2004). Consequently, the Board does not find
that the late notice under the VCAA requires remand to the
RO. Nothing about the evidence or any response to the RO's
notification suggests that the case must be re-adjudicated
ab initio to satisfy the requirements of the VCAA.
Additionally, while the notice did not refer to criteria for
assigning a disability rating or an effective date, see
Dingess v. Nicholson, 19 Vet. App. 473 (2006), neither of
these questions is before the Board and neither question is
raised by the Board's order set forth herein. Consequently,
a remand of the service connection issue is not necessary.
There is no indication that any additional action is needed
to comply with the duty to assist in connection with the
issue on appeal. The veteran's service medical records have
been obtained and associated with the claims file, as have
treatment records from the VA Medical Center (VAMC) in
Louisville, Kentucky. The veteran also submitted private
treatment records from Norton Suburban Hospital.
Additionally, in February 2004, the veteran was afforded a VA
examination in relation to his claim, the report of which is
of record. A VA nexus opinion was also obtained in September
2004. The veteran also testified before the undersigned
Board member at a video conference hearing, the transcript of
which is of record. During the hearing, the veteran stated
that he received post-service treatment for his left shoulder
on several occasions. In the October 2005 notice letter, the
RO requested that the veteran provide more information
regarding such treatment in order to attempt to obtain these
medical records. No further information was provided by the
veteran or his representative. Although VA is under a duty
to assist in obtaining private medical records, such
assistance may be frustrated, as in this case, if the RO is
not provided with enough information or authorization for
release of records. In such cases, VA has met its duty to
assist. See 38 C.F.R. § 3.159(c)(1).
II. Analysis
Service connection may be established for disability
resulting from disease or injury incurred in or aggravated by
active military service. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. §§ 3.303, 3.304 (2005). In addition, certain
chronic diseases, such as arthritis, may be presumed to have
incurred during service if the disorder becomes manifest to a
compensable degree within one year of separation from
qualifying military service, or at some time after service if
certain requirements are met as specified in the statutes and
regulations. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2005).
The veteran contends that the left shoulder pain he
experienced in service is related to his current left
shoulder disability. A review of the veteran's service
medical records (SMRs) reveals that he had complaints of left
shoulder pain on at least three occasions while in service in
1971 and 1972. X-rays were negative and, in each instance,
he was diagnosed with bursitis and received treatment for
such. The veteran's July 1974 separation examination was
normal in all pertinent respects.
Medical records after separation from service reflect that
the veteran had surgery to repair a torn rotator cuff of his
left shoulder in November 1995. Subsequently he was treated
at the Louisville VAMC for left shoulder pain and X-rays
revealed degenerative changes in his left shoulder in July
2002. An MRI in February 2003 confirmed there were
degenerative changes in the veteran's left shoulder, as well
as a tear of the supraspinatus tendon. In February 2004, he
underwent VA orthopedic examination. In regard to the
veteran's left shoulder, the examiner reported that its
function was moderately impaired with failure of the rotator
cuff repair surgery. The examiner did not provide an opinion
as to the etiology of the veteran's left shoulder disability
and stated that it was very difficult to ascertain whether
the rotator cuff tear was related to service.
The only medical opinion on the matter of a nexus between the
veteran's current left shoulder disability and his time in
service was offered by the VA physician who provided a
September 2004 opinion. The physician, after a review of the
claims file, gave the opinion that the veteran's current
disability was not likely related to his time in service. In
the report, the physician stated as follows:
At this time, I feel that it is less likely
as not that the current left shoulder
condition is related to the left shoulder
bursitis that was treated in the service in
1972. I feel that it is more likely that the
patient's current left shoulder conditions
are related to an occupational history of
greater than 20 years working in a cigarette
factory. Additionally, the veteran's current
left shoulder impairment is also related to
the left shoulder surgery in 1995. It would
be unlikely that bursitis of the left
shoulder would lead to or progress to a
supraspinatus tendon tear or rotator cuff
tear or would cause degenerative changes.
The Board accords substantial probative value to the
September 2004 VA physician's opinion regarding the lack of a
nexus between any in-service problem and the veteran's
current left shoulder disability. The physician attributes
the current disability to events subsequent to the veteran's
time in service. The opinion is competent, an explanation
was provided, and it was based on a review of the entire
record. There is no medical opinion or evidence of record
opposing this opinion. Based on the September 2004 VA
opinion, and the lack of evidence to the contrary, the Board
finds that the preponderance of the evidence is against the
veteran's claim of service connection on a direct basis.
Additionally, the medical evidence does not establish that
any arthritis of the left shoulder was manifest within one
year of separation from the veteran's period of active
service. As noted above, the first documented post-service
diagnosis of degenerative changes of the left shoulder was in
the July 2002 X-Ray report, which was many years after the
veteran was discharged. Therefore, service connection on a
presumptive basis is not warranted. See 38 C.F.R. §§ 3.307,
3.309.
The Board has considered the veteran's written contentions
and hearing testimony with regard to his claim for service
connection. While the Board does not doubt the sincerity of
the veteran's belief that his left shoulder disability is
related to his time in service, as a lay person without the
appropriate medical training or expertise, he simply is not
competent to provide a probative opinion on a medical
matter-such as the etiology of a current disability. See
Bostain v. West, 11 Vet. App. 124, 127 (1998), citing
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). See also
Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("[A]
layperson is generally not capable of opining on matters
requiring medical knowledge . . . ."). As such, the
veteran's assertions cannot provide a basis for a grant of
service connection.
For all the foregoing reasons, the Board finds that the claim
of service connection for a left shoulder disability must be
denied. In reaching this conclusion, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine. However, as the preponderance of the evidence is
against the veteran's claim, that doctrine is not applicable.
See 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 3.102
(2005); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir.
2001).
ORDER
Service connection for a left shoulder disability is denied.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs